In 1996 (you remember 1996, don't you?), Corey purchased a vacant parcel, adjacent to a busy crossroads, and thus an ideal location for a truck stop. Problem was that the zoning was C-2, which didn't permit truck stops (although it did allow gas stations and convenience stores).
So began a 25+ year odyssey, which in Corey v. Rockdale County, No. 23-13097 (May 7, 2025), the U.S. Court of Appeals held that Corey's takings claim was not ripe because the County amended the challenged zoning ordinance around his earlier claim, and he had not received the County's confirmation under the most recent version of its zoning that the truck stop Corey had been trying to build was a definite no-go.
Let's start at the beginning. To us, it seems like the takings claim was ripe back in 1999:
In 1999, Corey asked the County if its zoning regulations permitted him to build a truck stop on his property. The County said no and informed Corey that truck stops were not a “specifically designated” use for C-2 properties under the then-existing zoning ordinance.
Slip op. at 3.
But instead of suing (something few property owners want to do -- they want to use their properties, not pursue takings claims), the owner made efforts to try and make it work. He tried to amend the zoning (something he was not required to do). No luck. He asked to build a "travel plaza" and not a truck stop. County shook its head. He sued, unsuccessfully, to compel the County to issue a zoning permit. He changed his plans and instead of a truck stop, tried to build a C-store "which sold fuel to automobiles and heavy trucks." Slip op. at 4. Got nowhere.
By now, we're in 2006. The County re-emphasized its earlier "no truck stops" by amending the zoning ordinance to expressly say "no truck stops." Yes, you can have a gas station on C-2 zoned land (like Corey's adjacent properties), but you can't have any combination of uses that add up to "truck stop."
Flash forward to 2018. Corey sought to construct a "travel plaza." A C-store, gas pumps, truck scales, and truck parking. This time, things looked hopeful. The County planning director seemed amenable to an amendment to the C-2 zoning ordinance to allow travel plazas like this. The Planning Commission recommended adoption of this amendment to the County board of commissioners who have the final word on zoning amendments. "But the board unanimously rejected the amendment." Slip op. at 5.
Undaunted, Corey applied for a construction permit. Unsurprisingly, the County said no. This is a dang truck stop, dude!
In 2019, roughly a year after the amendment was rejected, Corey applied for a construction permit to build the QuikTrip travel plaza. The County rejected Corey’s permit application be-cause it sought to build a truck stop prohibited by the 2006 ordi-nance. Corey appealed the denial to the County’s internal appeals board, which—after holding a hearing—affirmed the County’s decision.
Id.
He appealed the decision up through the state court system, ultimately winning a claim that the ordinance's definition of "truck stop" was unconstitutionally vague. Slip op. at 6.
What's that old saying? If at first you don't succeed, try try again? This time it was the County's turn.
Remember that infamous advice back in the day where government were advised that if they got whacked with a regulatory takings judgment that all they needed to do was amend the regulation and require the owner to start over? The County's approach here seems like a ripeness version of that advice. In 2021, it amended the C-2 zoning to clarify the definition of truck stop, and re-emphasize that such uses are prohibited.
"Fool me three times, shame on me" thought Corey: he sued for a taking. But the district court entered judgment on the pleadings for the County.
The Eleventh Circuit affirmed the dismissal. Despite the earlier denials of permit applications, and the current version of the ordinance expressly prohibiting truck stops, Corey's claim that being prohibited from building a truck stop is a taking isn't ripe. Why? Because "Corey did not apply for a permit or variance under the 2021 ordinance." Slip op. at 10. You never know: the County this time might say yes (despite decades of saying no in nearly every way possible).
Wouldn't this be futile in light of this history, as Corey argued? No, those earlier denials were under the then-applicable C-2 zoning ordinances. But there's been no application -- and thus no denial -- under the current zoning ordinance. Hang on. Isn't the 2021 zoning ordinance more restrictive and more clear that truck stops are banned? Yes, but the County is entitled to have a chance to apply the 2021 ordinance. To say what, exactly? That it would allow a truck stop when it clarified the ordinance to expressly prohibit truck stops?
And what about the where's-there's-smoke vibe that this ordinance was amended to thwart Corey's use of his property, and not as some general prohibition on truck stops? No, the Eleventh Circuit held, this ordinance didn't target "precisely and only" Corey and his parcel. The truck stop ban applied to all C-2 properties in the County. We wonder how many of those other properties were suitable for truck stops. Hmmm.
All Corey needs to do to ripen a takings claim is to apply for a C-2 zoning permit, and if that doesn't work, to seek a "variance" (even though you land users know that what courts identify as a "variance" isn't even in the ballpark about what variances are about -- what courts mean is some kind of decision by the County to not apply the C-2 zoning and allow a truck stop despite the ordinance's express prohibition).
This case is a good illustration of the tail wagging the dog nature of final decision ripeness. And dntil the Supreme Court wakes up and pays attention to what is going on, nothing is going to change.
Corey v. Rockdale County, No. 23-13097 (11th Cir. May 7, 2025) (unpub.)